Florida Senate - 2008 SB 2330

By Senator Justice

16-02873-08 20082330__

A bill to be entitled

An act relating to homeowners' associations; amending

ss. 34.01 and 720.302, F.S.; conforming cross-references

to changes made by the act; repealing s. 720.311, F.S.,

which provides for alternative dispute resolution of

disputes between parcel owners and homeowners'

associations; creating part IV within ch. 720, F.S.;

providing for dispute resolution regarding disputes

between parcel owners and homeowners' associations;

providing legislative findings; requiring that a dispute

between a homeowners' association and a parcel owner be

subject to presuit mediation before it may be filed in

court; providing that any such dispute not resolved by

mediation is subject to arbitration before it may be

filed in court; providing exceptions; identifying and

limiting the scope of mediation and arbitration to

specified categories of disputes; prohibiting such

disputes from including the collection of any

assessment, fine, or other financial obligation, or any

action to enforce a prior mediation settlement agreement

between the parties or a final order of an arbitrator or

court; authorizing the filing of a motion for temporary

injunctive relief without first complying with the

requirement of mediation or arbitration for any dispute

for which emergency relief is required; providing that

election disputes and recall disputes are not eligible

for presuit mediation; providing procedures for recall

and election disputes; requiring that a petitioner remit

a filing fee; providing for the recovery of fees,

including attorney's fees, by the prevailing party at an

arbitration proceeding; authorizing the Division of

Florida Land Sales, Condominiums, and Mobile Homes in

the Department of Business and Professional Regulation

to adopt rules to administer mediation and arbitration

provisions; providing that the service of a notice of

presuit mediation or arbitration tolls the applicable

statute of limitations; providing that such mediation

and arbitration proceedings be conducted according to

the Florida Rules of Civil Procedure; providing that

such proceedings have the same level of privilege and

confidentiality as court-ordered mediation; providing

that an arbitrator or judge may not consider any

information or evidence arising from the presuit

mediation proceeding except in a proceeding to impose

sanctions for failure to attend a presuit mediation

session or to enforce a mediated settlement agreement;

providing that counsel for the parties or a corporate

representative designated by the association or the only

nonparties to a dispute who may attend mediation or

arbitration; providing that a mediation attended by a

quorum of the board of an association is not a board

meeting for purposes of notice and participation as

prescribed by state law; requiring that a mediator be

certified as a circuit court civil mediator pursuant to

the requirements established by the Florida Supreme

Court; requiring that an arbitrator meet the

qualifications and training requirements provided by

state law; providing that settlement agreements

resulting from a presuit mediation or arbitration

proceeding do not have precedential value in proceedings

involving parties other than those participating in the

mediation or arbitration; authorizing certain

corporations to use the mediation procedures prescribed

in the act; providing that presuit mediation and

arbitration procedures do not apply to a dispute that

has been previously arbitrated between the same parties;

authorizing parties to a dispute to recover any costs

and attorney's fees incurred in connection with such

arbitration or mediation proceedings; providing

procedures for the enforcement of an arbitration or

mediation award; requiring that the division maintain a

list of certified mediators and county and circuit court

arbitrators in each county who are willing to mediate or

arbitrate homeowners' association disputes; requiring

that an aggrieved party serve a written notice of

presuit mediation upon the respondent; providing a

template for such written notice; requiring that such

written notice substantially follow the template in form

and content; specifying a procedure for service of such

notice; requiring that the parties share the costs of

mediation equally; authorizing a mediator to require

advance payment of his or her fees; requiring a

respondent to sign the notice and clearly indicate his

or her availability for mediation, as well as which of

the available mediators is acceptable; specifying

procedures regarding the scheduling of mediation;

requiring that the mediator notify the parties of the

date, time, and place of mediation within a specified

period; authorizing the petitioner to file a lawsuit

against the respondent under certain circumstances;

providing that certain actions or omissions by either

party constitute failure or refusal to participate in

mediation, entitling the other party to proceed to

arbitration or to file suit in court; prohibiting a

party that fails or refuses to participate in mediation

from recovering attorney's fees and costs in subsequent

litigation; providing that an impasse occurs if a

mediation session cannot be scheduled within a specified

period; providing an exception; providing procedures for

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presuit arbitration; requiring that an aggrieved party

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serve a written notice of presuit arbitration upon the

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respondent; providing a template for such written

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notice; requiring that such written notice substantially

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follow the template in form and content; specifying a

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procedure for service of such notice; requiring that the

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parties share the costs of arbitration equally;

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authorizing an arbitrator to require advance payment of

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his or her fees; requiring a respondent to sign the

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notice and clearly indicate his or her availability for

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arbitration, as well as which of the available

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arbitrators is acceptable; specifying procedures

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regarding the scheduling of arbitration; requiring that

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the arbitrator notify the parties of the date, time, and

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place of arbitration within a specified period;

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prohibiting an arbitrator from considering any

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unsuccessful mediation except to impose sanctions for

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failure to appear at a mediation conference; requiring

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an arbitrator to enter an order of dismissal if the

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parties do not agree to continue arbitration;

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authorizing the petitioner to file a lawsuit against the

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respondent under certain circumstances; authorizing an

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arbitrator to subpoena witnesses or the production of

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records at the request of any party; providing for the

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service of such subpoenas; requiring that an arbitrator

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issue a decision in writing; providing that such

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decision is final with respect to those disputes for

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which the parties have agreed to be bound; authorizing a

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party to file a motion for a trial de novo in a court of

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competent jurisdiction within a specified period;

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requiring that a prevailing party in an arbitration

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proceeding be awarded the costs of arbitration and

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reasonable attorney's fees in an amount determined by

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the arbitrator; requiring that the party filing a motion

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for a trial de novo be assessed the other party's

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arbitration costs, court costs, and other reasonable

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costs if the judgment upon a trial de novo is not more

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favorable than the arbitration decision; requiring that

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the party filing a complaint for a trial de novo be

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awarded reasonable court costs and attorney's fees if

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the judgment is more favorable upon a trial de novo;

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providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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Section 1. Paragraph (d) of subsection (1) of section

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34.01, Florida Statutes, is amended to read:

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34.01 Jurisdiction of county court.--

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(1) County courts shall have original jurisdiction:

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(d) Of disputes occurring in the homeowners' associations

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as described in part IV of chapter 720 s. 720.311(2)(a), which

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shall be concurrent with jurisdiction of the circuit courts.

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Section 2. Subsection (2) of section 720.302, Florida

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Statutes, is amended to read:

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720.302 Purposes, scope, and application.--

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(2) The Legislature recognizes that it is not in the best

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interest of homeowners' associations or the individual

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association members thereof to create or impose a bureau or other

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agency of state government to regulate the affairs of homeowners'

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associations. However, in accordance with part IV of chapter 720

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s. 720.311, the Legislature finds that homeowners' associations

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and their individual members will benefit from an expedited

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alternative process for resolution of election and recall

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disputes and presuit mediation of other disputes involving

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covenant enforcement and authorizes the department to hear,

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administer, and determine these disputes as more fully set forth

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in this chapter. Further, the Legislature recognizes that certain

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contract rights have been created for the benefit of homeowners'

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associations and members thereof before the effective date of

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this act and that ss. 720.301-720.407 are not intended to impair

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such contract rights, including, but not limited to, the rights

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of the developer to complete the community as initially

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contemplated.

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Section 3. Section 720.311, Florida Statutes, is repealed.

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Section 4. Part IV of chapter 720, Florida Statutes,

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consisting of sections 720.501, 720.502, 720.503, and 720.504, is

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created to read:

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720.501 Legislative findings.--The Legislature finds that

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alternative dispute resolution has made progress in reducing

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court dockets and trials and in offering a more efficient, cost-

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effective option to litigation.

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720.502 Applicability.--

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(1) Before a dispute between a homeowners' association and

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a parcel owner may be filed in court, the dispute is subject to

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presuit mediation pursuant to s. 720.503. Any dispute that is not

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resolved by the presuit mediation is subject to presuit

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arbitration pursuant to this part, unless a party fails to

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participate in presuit mediation as provided in s. 720.504 or all

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of the parties agree to waive presuit arbitration at any time

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before the arbitrator's final written decision.

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(2) Unless otherwise provided in this part, the mandatory

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mediation and arbitration provisions of this part are limited to

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disputes between a homeowners' association and a parcel owner

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regarding the use of or changes to the parcel or the common areas

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and other covenant enforcement disputes, disputes regarding

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amendments to the association documents, disputes regarding

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meetings of the board and committees appointed by the board,

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membership meetings not including election meetings, and access

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to the official records of the association.

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(3) Disputes involving the collection of any assessment,

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fine, or other financial obligation, including attorney's fees

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and costs, or any action to enforce a prior mediation settlement

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agreement between the parties or a final order of an arbitrator

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or court are not subject to presuit mediation or arbitration

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under this part.

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(4) In any dispute subject to presuit mediation or

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arbitration under this part for which emergency relief is

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required, a motion for temporary injunctive relief may be filed

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with the court without first complying with the presuit mediation

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and arbitration requirements of this part. After any issues

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regarding emergency or temporary relief are resolved, the court

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may refer the parties to a mediation program administered by the

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courts or require mediation or arbitration under this part.

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(5) Any recall dispute filed with the department pursuant

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to s. 720.303(10) shall be conducted by the department in

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accordance with the provisions of ss. 718.112(2)(j) and 718.1255,

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and the rules adopted by the division. In addition, the

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department shall conduct mandatory arbitration of election

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disputes between a member and an association pursuant to s.

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718.1255 and rules adopted by the division. Election disputes and

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recall disputes are not eligible for presuit mediation; these

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disputes shall be arbitrated by the department. At the conclusion

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of the proceeding, the department shall charge the parties a fee

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in an amount adequate to cover all costs and expenses incurred by

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the department in conducting the proceeding. The petitioner shall

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remit an initial filing fee of at least $200 to the department.

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The fees paid to the department are a recoverable cost in the

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arbitration proceeding, and the prevailing party in an

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arbitration proceeding shall recover its reasonable costs and

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attorney's fees in an amount found reasonable by the arbitrator.

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The division may adopt rules under ss. 120.536(1) and 120.54 to

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administer this section.

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(6) The service of a notice of presuit mediation or

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arbitration tolls the applicable statute of limitations.

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(7) Presuit mediation and arbitration proceedings shall be

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conducted in accordance with the applicable Florida Rules of

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Civil Procedure. Such proceedings have the same level of

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privilege and confidentiality as court-ordered mediation. An

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arbitrator or judge may not consider any information or evidence

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arising from the presuit mediation proceeding except in a

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proceeding to impose sanctions for failure to attend a presuit

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mediation session or to enforce a mediated settlement agreement.

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Persons who are not parties to the dispute may not attend the

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presuit mediation conference without the consent of all parties,

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with the exceptions of counsel for the parties and a corporate

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representative designated by the association. When mediation is

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attended by a quorum of the board, such mediation is not a board

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meeting for purposes of notice and participation set forth in

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this chapter. A mediator is authorized to conduct mediation or

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arbitration under this section only if he or she has been

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certified as a circuit court civil mediator pursuant to the

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requirements established by the Florida Supreme Court. An

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arbitrator must meet the qualifications and training requirements

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adopted pursuant to s. 44.106. Settlement agreements resulting

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from a mediation or arbitration proceeding do not have

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precedential value in proceedings involving parties other than

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those participating in the mediation or arbitration.

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(8) The presuit mediation procedures provided in this part

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may be used by a Florida corporation responsible for the

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operation of a community in which the voting members are parcel

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owners or their representatives, in which membership in the

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corporation is not a mandatory condition of parcel ownership, or

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which is not authorized to impose an assessment that may become a

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lien on the parcel.

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(9) The presuit mediation and arbitration procedures

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provided in this part do not apply to a dispute that has been

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previously arbitrated between the same parties.

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(10) The parties may seek to recover any costs and

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attorney's fees incurred in connection with arbitration and

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mediation proceedings under this part as part of the costs and

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fees that may be recovered by the prevailing party in any

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subsequent litigation.

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(11) Any party to an arbitration proceeding may enforce an

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arbitration award by filing a petition in a court of competent

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jurisdiction in which the homeowners' association is located. A

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petition may not be granted unless the time for appeal by the

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filing of a motion for a trial de novo has expired. If a motion

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for a trial de novo has been filed, a petition may not be granted

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with respect to an arbitration award that has been stayed. If the

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petition for enforcement is granted, the petitioner shall be

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awarded reasonable attorney's fees and costs incurred in

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enforcing the arbitration award. A mediation settlement may also

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be enforced through the county or circuit court, as applicable,

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and any costs and fees incurred in the enforcement of a

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settlement agreement reached at mediation must be awarded to the

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prevailing party in any enforcement action.

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(12) To facilitate the mediation and arbitration of

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homeowners' association disputes, the division shall maintain a

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list of certified mediators and county and circuit court

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arbitrators in each county who are willing to mediate or

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arbitrate homeowners' association disputes.

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720.503 Mandatory presuit mediation.--

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(1) Disputes between an association and a parcel owner must

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be the subject of a demand for presuit mediation before the

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dispute may be filed in court or submitted to arbitration

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pursuant to s. 720.504. An aggrieved party shall serve on the

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responding party a written notice of presuit mediation in

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substantially the following form:

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STATUTORY NOTICE OF PRESUIT MEDIATION

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The alleged aggrieved party, ____________________, hereby

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demands that ____________________, as the responding party,

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engage in mandatory presuit mediation in connection with the

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following disputes, which by statute are of a type that are

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subject to presuit mediation:

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(List specific nature of the dispute or disputes to be

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mediated and the authority supporting a finding of a

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violation as to each dispute.)

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Pursuant to part IV of chapter 720, Florida Statutes, this

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demand to resolve the dispute through presuit mediation is

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required before a lawsuit can be filed concerning the

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dispute. Pursuant to the statute, the parties are required

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to engage in presuit mediation with a neutral third-party

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mediator in order to attempt to resolve this dispute without

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court action, and the aggrieved party demands that you

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likewise agree to this process. If you fail to participate

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in the mediation process, suit may be brought against you

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without further warning.

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The process of mediation involves a supervised negotiation

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process in which a trained, neutral third-party mediator

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meets with both parties and assists them in exploring

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possible opportunities for resolving part or all of the

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dispute. By agreeing to participate in presuit mediation,

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you are not bound in any way to change your position.

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Furthermore, the mediator has no authority to make any

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decisions in this matter or to determine who is right or

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wrong and merely acts as a facilitator to ensure that each

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party understands the position of the other party and that

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all options for reasonable settlement are fully explored.

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If an agreement is reached, it shall be reduced to writing

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and becomes a binding and enforceable commitment of the

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parties. A resolution of one or more disputes in this

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fashion avoids the need to litigate these issues in court.

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The failure to reach an agreement, or the failure of a party

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to participate in the process, results in the mediator

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declaring an impasse in the mediation, after which the

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aggrieved party may proceed to court on all outstanding

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unsettled disputes. If you have failed or refused to

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participate in the entire mediation process, you will not be

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entitled to recover attorney's fees, even if you prevail.

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The aggrieved party has selected and hereby lists three

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certified mediators who we believe to be neutral and

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qualified to mediate the dispute. You have the right to

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select any one of these mediators. You have the right to

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respond with a selection of one or more alternative

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mediators of your choice if the aggrieved party's selected

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mediators are not acceptable to you. The fact that one party

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may be familiar with one or more of the listed mediators

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does not mean that the mediator cannot act as a neutral and

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impartial facilitator. Any mediator who cannot act in this

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capacity is required ethically to decline to accept

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engagement. The mediators that we suggest, and their current

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hourly rates, are as follows:

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(List the names, addresses, telephone numbers, and hourly

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rates of the mediators. Other pertinent information about

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the background of the mediators may be included as an

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attachment.)

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You may contact the offices of these mediators to confirm

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that the listed mediators will be neutral and will not show

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any favoritism toward either party. The Florida Supreme

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Court can provide you a list of certified mediators.

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Unless otherwise agreed by the parties, part IV of chapter

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720, Florida Statutes, requires that the parties share the

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costs of presuit mediation equally, including the fee

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charged by the mediator. An average mediation may require 3

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to 4 hours of the mediator's time, including some

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preparation time, and the parties would need to share

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equally the mediator's fees as well as their own attorney's

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fees if they choose to employ an attorney in connection with

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the mediation. However, use of an attorney is not required

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and is at the option of each party. The mediators may

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require the advance payment of some or all of the

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anticipated fees. The aggrieved party hereby agrees to pay

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or prepay one-half of the mediator's estimated fees and to

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forward this amount or such other reasonable advance

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deposits as the mediator requires for this purpose. Any

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funds deposited will be returned to you if these are in

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excess of your share of the fees incurred.

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To begin your participation in presuit mediation to try to

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resolve the dispute and avoid further legal action, please

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sign below and clearly indicate which mediator is acceptable

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to you.

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YOU MUST RESPOND TO THIS STATUTORY NOTICE OF PRESUIT

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MEDIATION WITHIN 30 DAYS.

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YOU MUST ALSO PROVIDE A LISTING OF AT LEAST THREE DATES AND

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TIMES AT WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE

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MEDIATION AND THAT ARE WITHIN 90 DAYS AFTER THE DATE OF THE

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MAILING OF THIS STATUTORY NOTICE OF PRESUIT MEDIATION. WE

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WILL THEN ASK THE MEDIATOR TO SCHEDULE A MUTUALLY CONVENIENT

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TIME AND PLACE FOR THE MEDIATION CONFERENCE TO BE HELD. IF

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YOU DO NOT PROVIDE A LIST OF AVAILABLE DATES AND TIMES, THE

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MEDIATOR IS AUTHORIZED TO SCHEDULE A MEDIATION CONFERENCE

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WITHOUT TAKING YOUR SCHEDULE AND CONVENIENCE INTO

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CONSIDERATION. THE MEDIATION CONFERENCE MUST BE HELD WITHIN

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60 DAYS AFTER THE SCHEDULED DATE, UNLESS EXTENDED BY MUTUAL

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WRITTEN AGREEMENT. IF YOU FAIL TO RESPOND WITHIN 20 DAYS

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FOLLOWING THE DATE OF THIS NOTICE, IF YOU FAIL TO PROVIDE

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THE MEDIATOR WITH DATES AND TIMES AT WHICH YOU ARE AVAILABLE

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FOR THE MEDIATION CONFERENCE, OR IF YOU FAIL TO AGREE TO AT

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LEAST ONE OF THE MEDIATORS THAT WE HAVE SUGGESTED, FAIL TO

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SUGGEST ALTERNATIVE MEDIATORS, OR FAIL TO PAY OR PREPAY TO

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THE MEDIATOR ONE-HALF OF THE COSTS INVOLVED, OR IF YOU FAIL

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TO APPEAR AND PARTICIPATE AT THE SCHEDULED MEDIATION, THE

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AGGRIEVED PARTY WILL BE AUTHORIZED TO PROCEED WITH THE

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FILING OF A LAWSUIT AGAINST YOU WITHOUT FURTHER NOTICE. IN

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THE SUBSEQUENT COURT ACTION, THE AGGRIEVED PARTY MAY SEEK AN

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AWARD OF ATTORNEY'S FEES OR COSTS INCURRED IN ATTEMPTING TO

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OBTAIN MEDIATION.

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THEREFORE, PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION.

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BY LAW, YOUR RESPONSE MUST BE MAILED BY CERTIFIED MAIL,

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RETURN RECEIPT REQUESTED, AND BY FIRST-CLASS MAIL TO THE

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ADDRESS SHOWN ON THIS DEMAND.

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______________________________

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______________________________

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RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO

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THE ABOVE-LISTED PARAMENTERS OF MEDIATION.

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AGREEMENT TO MEDIATE

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The undersigned hereby agrees to participate in presuit

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mediation and agrees to attend a mediation conducted by the

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following mediator or mediators who is/are listed above as

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someone who would be acceptable to mediate this dispute:

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(List acceptable mediator or mediators.)

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The undersigned hereby represents that he or she is

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available to attend and participate in the presuit mediation

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at the following dates and times:

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(List available dates and times.)

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I/we further agree to pay or prepay one-half of the

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mediator's fees and to forward such advance deposits as the

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mediator may require for this purpose.

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______________________________

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Signature of responding party #1

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______________________________

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Telephone contact information

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______________________________

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Signature and telephone contact information of responding

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party #2 (if applicable)(if property is owned by more than

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one person, all owners must sign).

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(2)(a) The statutory notice of presuit mediation shall be

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served by sending a letter in substantial conformity with the

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above form by certified mail, return receipt requested, with an

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additional copy being sent by regular first-class mail, to the

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address of the responding party as it last appears on the books

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and records of the association. The responding party has 20 days

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following the date of the mailing of the statutory notice to

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serve a response to the aggrieved party in writing. The response

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shall be served by certified mail, return receipt requested, with

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an additional copy being sent by regular first-class mail, to the

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address shown on the statutory notice. Notwithstanding the

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foregoing, once the parties have agreed on a mediator, the

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mediator may reschedule the mediation for a date and time

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mutually convenient to the parties.

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(b) The parties shall share the costs of presuit mediation

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equally, including the fee charged by the mediator, if any,

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unless the parties agree otherwise, and the mediator may require

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advance payment of his or her reasonable fees and costs.

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and clearly indicate which mediator is acceptable, and must

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provide a listing of dates and times within 90 days after the

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date of the mailing of the statutory notice of presuit mediation

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in which the responding party is available to participate in the

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mediation. The mediator must schedule the mediation conference at

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a mutually convenient time and place, but if the responding party

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does not provide a list of available dates and times, the

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mediator is authorized to schedule a mediation conference without

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taking the responding party's schedule and convenience into

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consideration. Within 21 days after the designation of the

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mediator, the mediator shall notify the parties in writing of the

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date, time, and place of the mediation conference. The mediation

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conference must be held within 60 days after the scheduled date,

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unless extended by mutual written agreement. If the responding

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party fails to respond within 20 days following the date of the

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statutory notice of presuit mediation, fails to agree to at least

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one of the mediators that have been suggested by the aggrieved

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party, fails to suggest alternative mediators, fails to pay or

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prepay to the mediator one-half of the costs involved, or fails

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to appear and participate at the scheduled mediation, the

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aggrieved party may proceed with the filing of a lawsuit against

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the respondent without further notice. In the subsequent court

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action, the aggrieved party may seek an award of attorney's fees

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or costs incurred in attempting to obtain mediation.

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(d) The failure of any party to respond to the statutory

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notice of presuit mediation within 30 days, to agree upon a

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mediator, to provide a listing of dates and times within 90 days

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after the date of the mailing of the statutory notice of presuit

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mediation in which the responding party is available to

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participate in the mediation, to make payment of fees and costs

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within the time established by the mediator, or to appear for a

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scheduled mediation session without the approval of the mediator

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constitutes failure or refusal to participate in the mediation

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process and operates as an impasse in the presuit mediation by

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such party, entitling the other party to proceed to arbitration

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under s. 720.504 or to file the dispute in court and to seek an

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award of the costs and fees associated with the mediation.

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Additionally, notwithstanding the provisions of any other law or

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document, persons who fail or refuse to participate in the entire

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mediation process may not recover attorney's fees and costs in

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subsequent arbitration or litigation relating to the dispute. If

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any presuit mediation session cannot be scheduled and conducted

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within 90 days after the offer to participate in mediation was

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filed, an impasse shall be deemed to have occurred unless both

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parties agree to extend the deadline.

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720.504 Mandatory presuit arbitration.--

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(1) Disputes between an association and a parcel owner must

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be the subject of a presuit arbitration before the dispute can be

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filed in court. An aggrieved party shall serve on the responding

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party a written notice of presuit arbitration in substantially

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the following form:

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STATUTORY NOTICE OF PRESUIT ARBITRATION

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The alleged aggrieved party, ____________________, hereby

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demands that ____________________, as the responding party,

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engage in mandatory presuit arbitration in connection with

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the following disputes, which by statute are subject to

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presuit arbitration:

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(List specific nature of the dispute or disputes to be

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arbitrated and the authority supporting a finding of a

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violation as to each dispute.)

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534

Pursuant to part IV of chapter 720, Florida Statutes, this

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demand to resolve the dispute through presuit arbitration is

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required before a lawsuit can be filed concerning the

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dispute, and the parties are required to engage in presuit

538

arbitration with a neutral third-party arbitrator in order

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to attempt to resolve this dispute without court action. The

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aggrieved party demands that you participate in this

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process. If you fail to participate in the arbitration

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process, suit may be brought against you without further

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warning.

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The process of arbitration involves a neutral third person,

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called an arbitrator, who considers the facts and arguments

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presented by the parties and renders a decision. PURSUANT TO

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SECTION 720.504, F.S., THE DECISION OF THE ARBITRATOR SHALL

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BE FINAL IF A COMPLAINT IS NOT FILED IN A COURT OF COMPETENT

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JURISDICTION IN WHICH THE HOMEOWNERS' ASSOCIATION IS LOCATED

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WITHIN 30 DAYS AFTER THE DATE THAT THE DECISION IS RENDERED.

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553

If a settlement agreement is reached before the arbitration

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decision, it shall be reduced to writing and become a

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binding and enforceable commitment of the parties. A

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resolution of one or more disputes in this fashion avoids

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the need to arbitrate these issues or to litigate these

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issues in court. The failure of a party to participate in

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the process results in the arbitrator declaring an impasse

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in the arbitration, after which the aggrieved party may

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proceed to court on all outstanding, unsettled disputes. If

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a party has failed or refused to participate in the entire

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arbitration process, that party will not be entitled to

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recover attorney's fees, even if the party prevails.

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566

The aggrieved party has selected and hereby lists three

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arbitrators who we believe to be neutral and qualified to

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arbitrate the dispute. You have the right to select any one

569

of these arbitrators. You have the right to respond with a

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selection of one or more alternative arbitrators of your

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choice if the aggrieved party's selected arbitrators are not

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acceptable to you. The fact that one party may be familiar

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with one or more of the listed arbitrators does not mean

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that the arbitrator cannot act as a neutral and impartial

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arbitrator. Any arbitrator who cannot act in this capacity

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is required ethically to decline to accept engagement. The

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arbitrators that we suggest, and their current hourly rates,

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are as follows:

579

580

(List the names, addresses, telephone numbers, and hourly

581

rates of the mediators. Other pertinent information about

582

the background of the mediators may be included as an

583

attachment.)

584

585

You may contact the offices of these arbitrators to confirm

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that the listed arbitrators will be neutral and will not

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show any favoritism toward either party.

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589

Unless otherwise agreed by the parties, part IV of chapter

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720, Florida Statutes, requires that the parties share the

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costs of presuit arbitration equally, including the fee

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charged by the arbitrator. An average arbitration may

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require three to four hours of the arbitrator's time,

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including some preparation time, and the parties would need

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to share equally the arbitrator's fees as well as their own

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attorney's fees if they choose to employ an attorney in

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connection with the arbitration. However, use of an attorney

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is not required and is at the option of each party. The

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arbitrators may require the advance payment of some or all

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of the anticipated fees. The aggrieved party hereby agrees

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to pay or prepay one-half of the arbitrator's estimated fees

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and to forward this amount or such other reasonable advance

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deposits as the mediator requires for this purpose. Any

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funds deposited will be returned to you if they exceed your

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share of the fees incurred.

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607

To begin your participation in presuit arbitration to try to

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resolve the dispute and avoid further legal action, please

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sign below and clearly indicate which arbitrator is

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acceptable to you.

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612

YOU MUST RESPOND TO THIS STATUTORY NOTICE OF PRESUIT

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ARBITRATION WITHIN 30 DAYS.

614

615

YOU MUST ALSO PROVIDE A LISTING OF AT LEAST THREE DATES AND

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TIMES AT WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE

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ARBITRATION AND THAT ARE WITHIN 90 DAYS AFTER THE DATE OF

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THE MAILING OF THIS STATUTORY NOTICE OF PRESUIT ARBITRATION.

619

WE WILL THEN ASK THE ARBITRATOR TO SCHEDULE A MUTUALLY

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CONVENIENT TIME AND PLACE FOR THE ARBITRATION CONFERENCE TO

621

BE HELD. IF YOU DO NOT PROVIDE A LIST OF AVAILABLE DATES AND

622

TIMES, THE ARBITRATOR IS AUTHORIZED TO SCHEDULE AN

623

ARBITRATION CONFERENCE WITHOUT TAKING YOUR SCHEDULE AND

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CONVENIENCE INTO CONSIDERATION. THE ARBITRATION CONFERENCE

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MUST BE HELD WITHIN 60 DAYS AFTER THE SCHEDULED DATE, UNLESS

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EXTENDED BY MUTUAL WRITTEN AGREEMENT. IF YOU FAIL TO RESPOND

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WITHIN 20 DAYS FOLLOWING THE DATE OF THIS NOTICE, IF YOU

628

FAIL TO PROVIDE THE ARBITRATOR WITH DATES AND TIMES AT WHICH

629

YOU ARE AVAILABLE FOR THE ARBITRATION CONFERENCE, OR IF YOU

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FAIL TO AGREE TO AT LEAST ONE OF THE ARBITRATORS THAT WE

631

HAVE SUGGESTED, FAIL TO SUGGEST ALTERNATIVE ARBITRATORS, OR

632

FAIL TO PAY OR PREPAY TO THE ARBITRATOR ONE-HALF OF THE

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COSTS INVOLVED, OR IF YOU FAIL TO APPEAR AND PARTICIPATE AT

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THE SCHEDULED ARBITRATION, THE AGGRIEVED PARTY WILL BE

635

AUTHORIZED TO PROCEED WITH THE FILING OF A LAWSUIT AGAINST

636

YOU WITHOUT FURTHER NOTICE. IN THE SUBSEQUENT COURT ACTION,

637

THE AGGRIEVED PARTY MAY SEEK AN AWARD OF ATTORNEY'S FEES OR

638

COSTS INCURRED IN ATTEMPTING TO OBTAIN ARBITRATION.

639

640

THEREFORE, PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION.

641

BY LAW, YOUR RESPONSE MUST BE MAILED BY CERTIFIED MAIL,

642

RETURN RECEIPT REQUESTED, AND BY FIRST-CLASS MAIL TO THE

643

ADDRESS SHOWN ON THIS DEMAND.

644

______________________________

645

______________________________

646

RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT TO

647

THE ABOVE-LISTED PARAMETERS OF ARBITRATION.

648

AGREEMENT TO ARBITRATE

649

The undersigned hereby agrees to participate in presuit

650

arbitration and agrees to attend an arbitration conducted by

651

the following arbitrator or arbitrators who are listed above

652

as someone who would be acceptable to arbitrate this

653

dispute:

654

655

(List acceptable arbitrator or arbitrators.)

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657

The undersigned hereby represents that he or she is

658

available to attend and participate in the presuit

659

arbitration at the following dates and times:

660

661

(List available dates and times.)

662

663

I/we further agree to pay or prepay one-half of the

664

arbitrator's fees and to forward such advance deposits as

665

the arbitrator may require for this purpose.

666

______________________________

667

Signature of responding party #1

668

______________________________

669

Telephone contact information

670

______________________________

671

Signature and telephone contact information of responding

672

party #2 (if applicable)(if property is owned by more than

673

one person, all owners must sign).

674

675

(2)(a) The statutory notice of presuit arbitration shall be

676

served by sending a letter in substantial conformity with the

677

above form by certified mail, return receipt requested, with an

678

additional copy being sent by regular first-class mail, to the

679

address of the responding party as it last appears on the books

680

and records of the association. The responding party has 20 days

681

following the date of the mailing of the statutory notice to

682

serve a response to the aggrieved party in writing. The response

683

shall be served by certified mail, return receipt requested, with

684

an additional copy being sent by regular first-class mail, to the

685

address shown on the statutory notice. Notwithstanding the

686

foregoing, once the parties have agreed on an arbitrator, the

687

arbitrator may reschedule the arbitration for a date and time

688

mutually convenient to the parties.

689

(b) The parties shall share the costs of presuit

690

arbitration equally, including the fee charged by the arbitrator,

691

if any, unless the parties agree otherwise, and the arbitrator

692

may require advance payment of his or her reasonable fees and

693

costs.

694

695

and clearly indicate which arbitrator is acceptable, and must

696

provide a listing of dates and times within 90 days after the

697

date of the mailing of the statutory notice of presuit

698

arbitration at which the responding party is available to

699

participate in the arbitration. The arbitrator must schedule the

700

arbitration conference at a mutually convenient time and place,

701

but if the responding party does not provide a list of available

702

dates and times, the arbitrator is authorized to schedule an

703

arbitration conference without taking the responding party's

704

schedule and convenience into consideration. Within 21 days after

705

the designation of the arbitrator, the arbitrator shall notify

706

the parties in writing of the date, time, and place of the

707

arbitration conference. The arbitration conference must be held

708

within 60 days after the scheduled date, unless extended by

709

mutual written agreement. If the responding party fails to

710

respond within 20 days following the date of statutory notice of

711

presuit arbitration, fails to agree to at least one of the

712

arbitrators that have been suggested by the aggrieved party,

713

fails to suggest alternative arbitrators, fails to pay or prepay

714

to the arbitrator one-half of the costs involved, or fails to

715

appear and participate at the scheduled mediation, the aggrieved

716

party may proceed with the filing of a lawsuit against the

717

respondent without further notice. In the subsequent court

718

action, the aggrieved party may seek an award of attorney's fees

719

or costs incurred in attempting to obtain arbitration.

720

(d) The failure of any party to respond to the statutory

721

notice of presuit arbitration within 30 days, to agree upon an

722

arbitrator, to provide a listing of dates and times that are

723

within 90 days after the date of the mailing of the statutory

724

notice of presuit arbitration at which the responding party is

725

available to participate in the arbitration, to make payment of

726

fees and costs within the time established by the arbitrator, or

727

to appear for an arbitration session without the approval of the

728

arbitrator constitutes failure or refusal to participate in the

729

arbitration process and operates as an impasse in the presuit

730

arbitration by such party, entitling the other party to proceed

731

to file the dispute in court and to seek an award of the costs

732

and fees associated with the arbitration. Additionally,

733

notwithstanding the provisions of any other law or document,

734

persons who fail or refuse to participate in the entire

735

arbitration process may not recover attorney's fees and costs in

736

subsequent litigation relating to the dispute. If any presuit

737

arbitration session cannot be scheduled and conducted within 90

738

days after the offer to participate in arbitration was filed, an

739

impasse shall be deemed to have occurred unless both parties

740

agree to extend this deadline.

741

(3) In an arbitration proceeding, the arbitrator may not

742

consider any unsuccessful mediation of the dispute except in a

743

proceeding to impose sanctions for failure to appear at a

744

mediation conference. If the parties do not agree to continue

745

arbitration, the arbitrator shall enter an order of dismissal,

746

and either party may institute a suit in a court of competent

747

jurisdiction. Arbitration shall be conducted according to the

748

Florida Rules of Civil Procedure.

749

(4) At the request of any party to the arbitration, the

750

arbitrator shall issue subpoenas for the attendance of witnesses

751

and the production of books, records, documents, and other

752

evidence, and any party on whose behalf a subpoena is issued may

753

apply to the court for orders compelling such attendance and

754

production. Subpoenas shall be served and are enforceable in the

755

manner provided by the Florida Rules of Civil Procedure.

756

Discovery may, at the discretion of the arbitrator, be permitted

757

in the manner provided by the Florida Rules of Civil Procedure.

758

(5) The arbitration decision shall be presented to the

759

parties in writing. An arbitration decision is final in those

760

disputes for which the parties have agreed to be bound. The

761

arbitration decision is final if a motion for a trial de novo is

762

not filed in a court of competent jurisdiction within 30 days

763

after the date that the arbitrator's decision is rendered. The

764

right to file for a trial de novo entitles the parties to file a

765

motion in the appropriate trial court for a judicial resolution

766

of the dispute. The prevailing party in an arbitration proceeding

767

shall be awarded the costs of the arbitration and reasonable

768

attorney's fees in an amount determined by the arbitrator. Such

769

an award shall include the costs and reasonable attorney's fees

770

incurred over the course of the arbitration proceeding as well as

771

the costs and reasonable attorney's fees incurred in preparing

772

for and attending any scheduled mediation.

773

(6) The party filing a motion for a trial de novo shall be

774

assessed the other party's arbitration costs, court costs, and

775

other reasonable costs, including attorney's fees, investigation

776

expenses, and expenses for expert or other testimony or evidence

777

incurred after the arbitration hearing if the judgment upon the

778

trial de novo is not more favorable than the arbitration

779

decision. If the judgment is more favorable, the party filing a

780

complaint for a trial de novo shall be awarded reasonable court

781

costs and attorney's fees.

782

Section 4. This act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.